Since September 2, the Trump Administration has been bombing small boats in international waters, killing a reported 83 people so far. Announcing the first strike with a cheery post accompanied by a grainy kill video on social media, President Donald Trump said the government had “positively identified” the victims as “Tren de Aragua Narcoterrorists, operating under the control of Nicolas Maduro, responsible for mass murder, drug trafficking, sex trafficking, and acts of violence and terror across the United States and Western Hemisphere.” That grab bag of allegations might have been seen at the time as an early and hammy attempt to just about cover the waterfront of potential justifications for using the United States military to perform executions at sea. But here we are, more than eleven weeks and twenty strikes later, pretty much in the exact same place.
In the early days after the first lethal strike, Vice President J.D. Vance gleefully said he “didn’t give a shit” whether the strike was illegal. And after government officials have (totally implausibly) suggested that the strikes are part of an armed conflict against the cartels, the President shrugged his shoulders at a reporter’s question about seeking a “declaration of war” from Congress, responding that “I think we’re just going to kill people that are bringing drugs into our country. Okay? We’re going to kill them, you know, they’re going to be, like, dead.”
At this point, we’d be fools if we did not get the message. Since the administration apparently received legal approval for the boat strikes from the Office of Legal Counsel (though it remains unclear whether any legal memo came after-the-fact), it is somewhat tempting to say, in the terms we’re most comfortable addressing these kinds of matters, that Trump is “claiming the right” to kill anyone he wants to call a terrorist. But as Charlie Savage recently pointed out in an important piece in the Times, Trump is not claiming any right at all—he is simply asserting that no one can stop him. In Savage’s paraphrase of former OLC chief Jack Goldsmith, with the lethal boat-strike campaign, Trump has “demonstrated an indifference to law that threaten[s] to hollow it out.”
But Goldsmith is only half right, because the hollowness of the law in this area is nothing new. The reality—which many people have had trouble coming to terms with over the past few months—is that no matter how seriously some lawyers in past administrations took their obligation to honestly interpret and follow the law, the executive’s unwavering insistence on secrecy combined with its vehement structural opposition to judicial review of national security decisions means that Trump’s latest campaign is not an aberration, but an extension of what came before. And this is what advocates have now been shouting for decades: impunity works for the bad guys, too.
Defending secret policies with appeals to secret law
To be sure, there is something very obviously different in the current administration’s approach. Most prominently, Trump administration officials hardly deign to even pretend that the law is a consideration, let alone an actual constraint. Even if you believe (as I do) that too many government lawyers over the past quarter century arrived at their conclusions about executive authority cynically, those lawyers at least felt compelled to speak the language of the law. Convincing the public that they were making sound legal judgments—when, thanks to journalists, things like the government’s use of torture or targeted killing became public—was often a central feature of consolidating support for, or more often beating back opposition against, government “national security” policies. But that does not mean that they all believed they had to speak that language publicly, and if they’d had their druthers, none of their work would have ever seen the light of day.
Take, for example, the “public relations campaign” (as the U.S. Court of Appeals for the Second Circuit put it) regarding the legality of the September 2011 U.S. drone strike that intentionally killed U.S. citizen Anwar al-Aulaqi. The same strike killed another U.S. citizen, Samir Khan, apparently incidentally. Two weeks later, another U.S. strike killed al-Aulaqi’s teenage U.S. citizen son, Abdulrahman—a horror that no government official has ever gone on the record to explain, apart from President Obama’s spokesman, Robert Gibbs, who (not kidding) blamed Anwar al-Aulaqi for bad parenting (“I would suggest that you should have a far more responsible father if they are truly concerned about the well being of their children.”).
It so happens that Savage was part of the reporting trio who, in March 2013 (eighteen months after al-Aulaqi’s killing) laid out, with reams of anonymously sourced details spanning more than 3500 words, the tick-tock and anguish of legal decision making that led up to the OLC’s authorization for the strike, as well as information about the government’s until-then secret allegations about why Aulaqi was lawfully targetable. This was, in David Pozen’s memorable construct, a “pleak”: an intentional and semi-authorized leak of classified information that served multiple purposes, primarily garnering public support for the administration’s actions through the attempted delivery of a one-sided narrative. By labeling the story as such, I do not mean to diminish the reporters or their reporting; these are very good reporters who do not simply reprint the government’s lines, and their article was a critically important contribution to the measly public facts surrounding the Aulaqi strike. Nevertheless, the government’s control over classified information, and its ability to manipulate secrecy in ways like this—here, to pre-empt or deflate pressure to have a court of law decide the legality of intentionally killing a U.S. citizen without due process—is a fundamental piece of the puzzle.
The Aulaqi article (the key section of which begins with the oddly jaunty announcement that “David Barron and Martin Lederman had a problem”) described the genesis and contents of OLC’s Aulaqi memo in striking detail, providing a window into the pair’s research and process. And the message that the Obama administration seemed to want to come out of the access it apparently granted for the story is that this was a hard question, and one its top lawyers took incredibly seriously. The piece also tried to assure readers that the OLC memo’s theory was limited, based not in expansive visions of Article II that Barron and Lederman had rejected as law professors, but in interpretations of statutes that could not easily be extended to people much unlike Aulaqi himself. Most importantly, the article suggested (without revealing the unprecedented legal arguments themselves) that the public should feel confident in the memo’s result.
The Aulaqi article was of a piece with much of the Obama administration’s approach to consolidating support for its national security policies, which notably enmeshed many of the practices that Obama had, during the 2008 campaign, appeared to promise to end.
During his candidacy, ending the Iraq War and closing Guantánamo were Obama’s hallmark stump-speech material, giving off the vibe that he would bring the nation’s post-9/11 Schmittian emergency to a close. Obama actually did try to close Guantánamo with a day-one executive order, and on the same day, declared, “For a long time now, there’s been too much secrecy in this city,” but “that era is now over.” That promise was, for many reasons, largely abandoned. All told, Obama vastly expanded the use of drones against al-Qaeda-related groups in countries like Yemen and Somalia where the United States was, in my and many experts’ views (pp. 39-40), simply not at war; approved bombings in Libya (again against AQ-linked/ISIS groups); and Syria (against an AQ-linked group and ISIL); continued to indefinitely detain scores of men at Guantánamo (while working, against fierce congressional opposition, to release or repatriate 197 others); opted to try detainees at Guantánamo by military commission instead of in criminal courtrooms (going so far as to reverse his own Attorney General’s decision to choose the latter); continued to press state secrets defenses in damages cases for Bush-era abuses; personally blocked release of images of torture and abuse; undermined the applicability of the War Powers Resolution by claiming an absurdly narrow definition of “hostilities” (notably, the Trump administration is now “doing a Libya” with respect to the boat strikes and the WPR); and aggressively pursued leakers of classified information notwithstanding the public interest value of particular disclosures.
It is true that the Obama administration cared far more than the previous one about providing the public with the broad outlines of the secret legal arguments justifying these policies, including most notably a series of speeches by administration officials like John Brennan and lawyers like Harold Koh and Jeh Johnson. But despite offering the public some scraps, the government vigorously defended (through a Swiss cheese of redaction) the total secrecy of its internal legal memoranda in court.
And because of the bipartisan insistence that national security policies and their justifications must remain secret, Obama sold his policies with personality instead. His administration was different than Bush’s because they were different, even “priest-like” in their self-professed devotion to defending the nation and attacking its enemies within the bounds of law and morality. (In a revealing story reported by Daniel Klaidman, CIA and military drone operators “talked about printing up T-shirts that said: ‘Drones: If they’re good enough for Harold Koh, they’re good enough for me.’”)
A bipartisan commitment to aggressive (and frequently wrong) interpretations of executive power
Whatever differences in public tone might have existed, the Obama administration built his national security policies upon the very same rickety legal architecture—and, even more, an attitude that embraced and encouraged broad assertions of executive authority—that many of Obama’s admirers on the left had reasonably assumed he stood against. Obama’s OLC rescinded some of the most notorious legal memos of the Bush era, including those concerning torture. But it left in place others that, as Goldsmith put it, “reach[ed] very broad conclusions about presidential power under Article II to use force to protect national interests, especially the defense of the nation.” Not only that, but the Obama administration advanced the executive into even more adventurous (and unlawful and unconstitutional) uses of executive power abroad—most notoriously, the 2011 bombing of Libya. The Obama administration also blessed the wild theory, which experts across the spectrum considered to be wholly implausible, that ISIS—a group that did not exist on 9/11 and was engaged in a fierce ideological battle with al-Qaeda—was a “successor force” of al-Qaeda, and therefore was covered by the 2001 AUMF. (It is not entirely clear which of Obama’s lawyers from which departments, including OLC, endorsed this theory, which was never tested in court. Notably, during Trump’s first term, the government detained a U.S. citizen alleged to be a member of ISIS under the same theory, but released him when the D.C. Circuit ruled that it had to prove its theory to a federal judge.)
While it may be true that Obama’s lawyers more frequently put forward their interpretations of congressional statutes, as opposed to pure Article II powers, that hardly affects the bottom line. For example, as we later learned, Barron and Lederman’s Aulaqi memo took a radically broad view of the meaning of the term “imminent threat.” Critically, the administration embraced “a more flexible understanding of imminence”—often referred to as “elongated imminence”—permitting, in the memo’s awkward words, the use of lethal force against a “continued and imminent threat.” That maneuver was the fulcrum of the government’s conclusion that it could, consistent with the Constitution, kill a man who no one seemed to argue was about to attack the United States, but was instead “continu[ing] to plot attacks” from afar. (Beyond the details published by the Times and some other reporting over the years, the actual factual basis for the memo’s conclusions has never been disclosed.) As Rebecca Ingber recently explained, even with those and other questionable moves to get past “a lot of barriers” to “suggest that there was a legal justification” for killing Aulaqi, “it was still a very tough question that many people think was wrongly decided.”
I’m sure that many will see a fairly wide gulf between, on the one hand, reliance on a groundbreakingly flexible version of “imminence” to use lethal force, even against a U.S. citizen, as part of what the government had concluded was a statutorily authorized armed conflict in order to prevent future armed attacks against the United States, and, on the other, whatever is happening in the Caribbean today. But whether President Obama’s lawyers like it or not, echoes of the Aulaqi memo can be clearly heard in the Trump administration’s deeply unserious justifications regarding imminence and the boat strikes, with Secretary Marco Rubio proclaiming, “We’re not going to sit back anymore and watch these people sail up and down the Caribbean like a cruise ship,” and reports indicating the government is relying, in its armed conflict determination, on its fantastical notion that profits from the drug trade might eventually cause violence in the United States. And, if we ever get to see the OLC memo that apparently authorized the ongoing boat strikes, it would not be at all surprising to see the Aulaqi memo cited in it when we do.
As Goldsmith himself recently explained, “This is how presidential power expands. They build on precedents, they point to the precedents, they pick up on language in the precedents, and they extend it to a new factual situation.” Even though he agrees the strikes are unlawful, Goldsmith explained that “the OLC opinions on Article II power are so open-ended and permissive that it’s just not a crazy interpretation of the OLC opinions to say that the President has this authority under Article II.” That this can even be said of such a blatantly unlawful killing campaign is deeply damning—not only of the current administration’s positions, but the past ones as well.
What did you “sign up for”?
What is missing from most of the criticism of these strikes so far is that the courts have not reviewed significant steps in this “expansion” (treating ISIS as a successor group covered by the AUMF, targeting Al-Shabaab in Somalia, etc.)—because the government has convinced them that they cannot. Internally reasoned executive-branch authorizations, ordinarily located in OLC, for ever-expanding national-security powers have been essentially unreviewable in court based on all kinds of executive-driven doctrines like standing, state secrets, political questions, and the shriveling availability of remedies for violations of the Constitution by federal officials. Through these doctrines, which have bloated beyond recognition in the 24 years since 9/11, the executive has maintained that litigation over matters involving classified information would jeopardize the security of the nation, including putting classified information in the hands of life-tenured judges, who aren’t used to handling such material and might inadvertently leak it. The government has also consistently argued that judicial review in cases seeking accountability for abuses of rights committed in the name of national security would intolerably intrude on the political branches’ constitutional powers.
And the executive has even argued that judicial review would chill national security officials from doing their best to protect the country, choosing to put American lives at risk by cowering in fear from potential damages lawsuits for unconstitutional behavior. As my ACLU colleague Ben Wizner once said, that position “takes a dim view of public officials,” as it is hard to “imagine a Secretary of State, or any other Cabinet official, being lackadaisical about national security to save a little money that might go to a victim of government abuse.” In Mitchell v. Forsyth, the Supreme Court said much the same thing in rejecting the government’s bid for absolute immunity from suit in national security matters, remarking that “the mere threat of litigation” was “unlikely” to “significantly affect the fearless and independent performance” by executive officials of their “national security tasks.”
It is of course not the job of OLC lawyers to put forward these types of litigation positions shielding the merits from any judge’s purview. Their job is different, aimed at setting the bounds (and open lanes) of executive action in the first instance. But to disregard or fail to appreciate what their colleagues were arguing in lawsuits challenging the very things (like torture, extraordinary rendition, surveillance, and targeted killing) that OLC had approved, as a tandem part of the system of executive impunity, is, as we have learned all too well over the past few months, a grave mistake.
The Aulaqi episode is particularly illustrative. Three months after the Times piece, the government continued to argue in court that it had no obligation to release the Aulaqi memo to the public, because “disclosure of such legal analysis could reasonably be expected to cause serious and exceptionally grave damage to national security.” (It ultimately lost that argument because it had been cornered into acknowledging as authentic a leaked, unclassified summary of the memo’s conclusions.) And less than three months before the Times report, the government had argued—in defending, on justiciability grounds, against a lawsuit seeking accountability for Aulaqi’s killing—that their positions did not “suggest that the Executive has unchecked power to conduct purported missile strikes abroad, particularly against citizens,” partly because of congressional oversight, but also because “checks and balances exist within the Executive Branch itself.” But whatever those kinds of checks were ever worth, they were always a matter of executive grace, bound to be ignored by an ungracious executive.
All told, the executive branch’s clear and unrelenting position has been that the lawyers who work for the President will always have the final word—and with the courts depressingly playing along, the executive has in practice amassed for itself the kind of absolute immunity from judicial inquiry in national security matters that the Supreme Court in Mitchell flatly rejected. Trump has taken that to the next level and then some, issuing an executive order commanding that he alone “shall provide authoritative interpretations of law for the executive branch,” rendering any OLC opinions purely advisory. But that is a codification of reality, not a warping of it.
And that is why, when people like Lawfare’s Benjamin Wittes look at the recent spate of lawless and lethal strikes in the Caribbean and say things like they “never signed up for this kind of targeted killing,” they are deluding themselves.
The problem is, and always has been, that playing with executive power is a dangerous game, and its consequences are hard and perhaps impossible to contain. If critics of the Trump boat strikes truly want to usher in a new era of respect for the rule of law, they must acknowledge that, in the shadow of the mounting democratic menace that Trump’s entire second administration represents, the legal process that yielded these strikes should not be seen as an aberration from the last quarter century of always-secret and often-unreviewable executive-branch legal reasoning, but the apotheosis of it.
